The Defense of Marriage Act was effectively repealed in December 2022, when Congress passed the Respect for Marriage Act and rewrote the two federal statutes DOMA had created. The new law replaced DOMA’s man-and-woman definition of marriage in federal law, scrapped the provision that let states ignore same-sex marriages performed elsewhere, and added statutory protection for interracial marriages as well.1Congress.gov. H.R.8404 – 117th Congress (2021-2022): Respect for Marriage Act
What DOMA Did Before It Was Replaced
DOMA, signed in 1996, had two operative sections. Section 3 defined marriage under federal law as “only a legal union between one man and one woman” and limited the word “spouse” to a person of the opposite sex. Section 2 gave states permission to refuse recognition of same-sex marriages performed in other states. A couple legally married in their home state could therefore be treated as unmarried by the federal government and by any other state they moved to or traveled through.2Legal Information Institute. Defense of Marriage Act (DOMA)
How the Courts Gutted DOMA First
The Supreme Court struck down Section 3 in 2013 in United States v. Windsor, finding that defining marriage to exclude same-sex couples “contrives to deprive some couples married under the laws of their State” of the federal rights available to everyone else. The Court held that the section violated the Fifth Amendment’s equal protection guarantee.3Justia Law. United States v. Windsor, 570 US 744 (2013)
Two years later, Obergefell v. Hodges held that the Fourteenth Amendment requires every state both to license same-sex marriages and to recognize those performed elsewhere.4Justia Law. Obergefell v. Hodges, 576 US 644 (2015) After those rulings, DOMA’s provisions were unenforceable but still sat on the books.
Why Congress Acted in 2022
The trigger for legislative action was Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade in 2022. Justice Thomas’s concurrence in Dobbs suggested the Court should reconsider Obergefell. Congress passed the Respect for Marriage Act as a statutory backstop, replacing DOMA’s language with new protections designed to survive even if the Court later narrowed constitutional marriage rights.1Congress.gov. H.R.8404 – 117th Congress (2021-2022): Respect for Marriage Act
What Replaced DOMA
Federal Recognition of Any Valid Marriage
The Respect for Marriage Act rewrote 1 U.S.C. § 7. For all federal purposes, a person is now considered married if the marriage is between two individuals and was valid in the state or territory where it took place.5Office of the Law Revision Counsel. 1 USC 7 – Marriage Federal agencies look only at whether the ceremony was legal at the time and place it occurred. That single test governs eligibility for Social Security survivor benefits, joint federal tax filing, the unlimited marital deduction for estate tax, veterans’ benefits, federal employee health insurance, and immigration sponsorship.
The statute also addresses foreign marriages. A marriage entered into outside any U.S. state or territory counts for federal purposes if it was valid where it took place and could have been entered into in at least one U.S. state.5Office of the Law Revision Counsel. 1 USC 7 – Marriage A same-sex marriage performed in Canada, for instance, satisfies both conditions.
Interstate Recognition
The old Section 2 of DOMA was replaced by a new 28 U.S.C. § 1738C. No person acting under state authority may deny full faith and credit to a marriage from another state based on the sex, race, ethnicity, or national origin of the spouses.6Office of the Law Revision Counsel. 28 U.S. Code 1738C – Certain Acts, Records, and Proceedings and the Effect Thereof A marriage licensed in one state remains legally intact everywhere in the country. Hospital visitation, emergency medical decisions, and property rights tied to marital status travel with the couple.
The inclusion of race and ethnicity adds a statutory layer beneath Loving v. Virginia. Even if constitutional marriage protections were later narrowed, this statute would independently prevent states from rejecting marriages based on the spouses’ racial or ethnic backgrounds.
Enforcement When a State Refuses
Two enforcement paths exist. The U.S. Attorney General can bring a federal civil action seeking declaratory and injunctive relief against any person acting under state authority who denies recognition. Individuals harmed by a violation also have a private right of action in federal district court for the same kinds of relief.6Office of the Law Revision Counsel. 28 U.S. Code 1738C – Certain Acts, Records, and Proceedings and the Effect Thereof A couple denied benefits because a state refuses to honor their out-of-state marriage can sue for a court order compelling recognition.
Religious Organizations Are Carved Out
The Respect for Marriage Act does not require any religious organization to provide goods, services, or facilities for the celebration or recognition of any marriage.1Congress.gov. H.R.8404 – 117th Congress (2021-2022): Respect for Marriage Act It also specifies that the federal duty to recognize same-sex marriages cannot be used as a basis to deny tax-exempt status, accreditation, licenses, or government grants and contracts to nonprofit religious organizations that hold a traditional view of marriage.7The Center for Public Justice. What Houses of Worship, Faith-Based Organizations, and People of Faith Need to Know and Do About the Respect for Marriage Act Existing religious liberty and conscience protections under the Constitution and other federal laws are preserved intact.
What the Replacement Does Not Do
The Respect for Marriage Act does not require any state to issue marriage licenses to same-sex couples. It requires states only to recognize marriages that were validly performed elsewhere. That distinction is largely academic today because Obergefell independently requires every state to license same-sex marriages.4Justia Law. Obergefell v. Hodges, 576 US 644 (2015) If Obergefell were later overturned, a state could stop issuing new licenses to same-sex couples while still being required to honor same-sex marriages performed in states that continued to license them. Couples in that scenario would need to marry in a state that still issued licenses and then rely on federal and interstate recognition upon returning home.
The law also does not recognize marriages involving more than two individuals, and it creates no new rights or benefits beyond those that already flow from marriage. It preserves the existing legal framework and ensures that framework applies equally regardless of who the spouses are.